Consolidated Navy Furlough Due to Sequestration Appeals Denied by Board

Years after the furlough, the Merit Systems Protection Board affirmed the Navy’s use of the furlough on a number of employees contesting the furlough’s applicability to their positions.

Employees from the Naval Undersea Warfare Center (“NUWC”) Division Keyport were furloughed for six days between July and August 2013. After several of the employees appealed their furloughs to the Merit Systems Protection Board, an MSPB administrative judge consolidated the appeals and held a single three-day hearing. The administrative judge’s initial decisions (one for each consolidated group), issued on June 9 and June 10, 2015, affirmed the furloughs. Several appellants elected to petition the full Board for review, and those petitions for review were consolidated by the Board. On March 3, 2016, the Merit Systems Protection Board affirmed the administrative judge’s decision.

The employees argued that their duty station was a major range and test facility base and that due to the nature of their installation and the availability of funds to pay employees during the furlough, the furlough was an impermissible civilian personnel management constraint. The employees also argued that NUWC permitted overtime during the furlough and that NUWC therefore could not show that the furlough was a reasonable management solution to the financial restrictions placed on it, or that the agency applied its determinations on which employees to furlough and which employees to pay (including overtime pay) in a fair and even manner.

The Board cited Yee v. Department of the Navy, 121 M.S.P.R. 686 (2014), stating that notwithstanding an employee’s assertion that there was adequate funding to avoid furloughs, it is reasonable for the Department of Defense to “consider a budget situation holistically” rather than making decisions in the micro (i.e. “isolating each individual military department’s situation”). In a subsequent case, Einboden v. Department of the Navy, a division of the Department of Defense had adequate funding to avoid a furlough, but due to the budget constraints placed on the Department as a whole, the Board upheld the furlough.

The Board acknowledged that the pay of overtime during a furlough could be relevant to whether the agency is applying the furlough uniformly and consistently. Citing “consistent” testimony from witnesses and the deciding official of the furlough which stated that overtime “was not provided to, nor withheld from, certain employees to offset or enhance the financial impacts of the furlough,” and that “the agency’s use of overtime was largely due to completing mission-critical needs or tasks,” the Board found that the agency’s use of overtime during the relevant time period promoted the efficiency of the service, and was not inconsistent given that the employees who were furloughed were not in the same competitive area as the employees who received overtime pay during the furlough.

For the above stated reasons, and because the Board found that the employees did not prove their affirmative defenses, the Merit Systems Protection Board denied the employees’ petition for review, and affirmed the administrative judge’s decision.